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 Fifth AMENDMENT  

to the

COOPERATION AND SUPPORT AGREEMENT

 

 

Fifth Amendment to the Cooperation and Support Agreement

This Fifth Amendment to the Cooperation and Support Agreement (the “Fifth Amendment”) is made this _____day of _____ 2012, by and between:

Telecom Italia S.p.A., an Italian corporation, with its head office located in the City of Milan, Italy, at Piazza Affari 2, 20123, registered with the Italian Register of Companies under number 00488410010 (hereinafter referred to as “TI”),

and

Tim Celular S.A., a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the City of São Paulo, State of São Paulo, at Avenida Giovanni Gronchi, no 7143, Brazil, registered with the National Register of Legal Entities (C.N.P.J.) under number 04.206.050/0001-80, (hereinafter referred to as “Tim Celular”), intelig telecomunicações ltda a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the city of Rio de Janeiro, State of Rio de Janeiro, at Praia de Botafogo, 370 registered with the National Register of Legal Entities (C.N.P.J.) under number 02.421.421/0001-11 (hereinafter referred to as “INTELIG”), Tim Fiber SP Ltda a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the city of São Paulo, State of São Paulo, at Avenida Alfredo Egídio de Souza Aranha, n. 100, Bloco B, 1o andar, Jardim Santo Antônio, registered with the National Register of Legal Entities (C.N.P.J.) under number 02.875.211/0001-01 (hereinafter referred to as “Tim Fiber SP”),  and Tim Fiber RJ S.A.  a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the city of Rio de Janeiro, State of Rio de Janeiro, at Avenida Marechal Floriano, no 19, 6o andar,  Centro, registered with the National Register of Legal Entities (C.N.P.J.) under number 02.720.349/0001-23 (hereinafter referred to as “Tim Fiber RJ”);

and, as intervening party,

Tim Participações S.A., a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the City of Rio de Janeiro, State of Rio de Janeiro, at Avenida das Américas, no 3434, 7th floor, Brazil, registered with the National Register of Legal Entities – C.N.P.J. under number 02.558.115/0001-21, (“Tim Part”).

For the purposes hereof TI, TIM Celular, INTELIG, TIM Fiber SP, TIM Fiber RJ and TIM PART shall each individually be referred to as a “Party” and collectively be referred to as the “Parties”.

WHEREAS, TI, TIM CELULAR, TIM PART and TIM Nordeste S.A., as of the 30th of May 2007, executed the Cooperation and Support Agreement (the “Cooperation and Support Agreement”) for the provision of different kind of services and/or the granting of software licenses, by TI to TIM Celular and TIM Nordeste S.A., in the areas of inter alia Network, Information Technology and Marketing and Sales;
 
WHEREAS on the 8th April 2008, the 22nd April 2009, the 25th of May 2010, and the 6th of May 2011, TI, TIM CELULAR, TIM Nordeste S.A. (this latter only with respect to the First Amendment and the Second Amendment) and TIM Part, the latter as intervening party, entered into, respectively, a First Amendment, Second Amendment, Third Amendment and Fourth Amendment to the Cooperation and Support Agreement, whereby they agreed upon to extend the Term of the Agreement from its Initial Term until 2nd January 2012 and determined the Road Map applicable for the years 2008, 2009, 2010 and 2011;

WHEREAS, effective as of December 30, 2009, INTELIG became a wholly owned subsidiary of TIM PART and therefore a company indirectly controlled by TI;

WHEREAS effective as of December 31, 2009, TIM Nordeste S.A. has been merged into its direct controlling company TIM CELULAR;

WHEREAS, on October 31, 2011, TIM Celular acquired the full Control over TIM Fiber SP and TIM Fiber RJ, which became therefore companies indirectly controlled by TI;

WHEREAS according to the Fourth Amendment to the Cooperation and Support Agreement, the Term of the Agreement expired on the 2nd of January 2012;

WHEREAS, (i) TIM Celular is willing to continue availing of TI’s support and expertise, being provided by TI with services support and license in some core areas of the telecommunication business also beyond the above mentioned expiration date, by further extending the term of the Cooperation and Support Agreement for an additional twelve months period and (ii) INTELIG, TIM Fiber SP and TIM Fiber RJ are willing to adhere to the Cooperation and Support Agreement, as amended herein, agreeing to be bound by terms and conditions thereof in order to receive from TI services and licenses based upon TI’s successful expertise in the telecommunication sector;

WHEREAS the further extension of the Term of the Cooperation and Support Agreement contemplated herein, as well as the adherence of INTELIG, TIM Fiber SP and TIM Fiber RJ thereto, has been duly authorised by each Party’s corporate bodies and competent officers, in compliance with the best corporate governance rules and practice to them applicable;  

NOW, THEREFORE, the Parties hereto, in consideration of the foregoing premises which form an integral and substantial part of this instrument, agreed to execute this Fifth Amendment to the Cooperation and Support Agreement under the following terms and conditions.

1.         Definitions and Interpretation.

1.1       The definitions contained in the Agreement and its Annexes shall apply to this Fifth Amendment (except where any term is specifically defined herein or the context otherwise requires).

1.2       This Fifth Amendment modifies the Agreement according to the terms and conditions set forth below.  Except as expressly provided in this Fifth Amendment, no other term or condition set forth in the Cooperation and Support Agreement and its Annexes is modified, amended or altered by this Fifth Amendment, and nothing contained herein, unless expressly provided to the contrary, shall be deemed to be or constitute an amendment, modification, extension, supplement or novation of the Cooperation and Support Agreement and its Annexes.

1.3.      Each reference in the Cooperation and Support Agreement or hereunder to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Cooperation and Support Agreement, shall mean and be a reference to the Agreement as amended pursuant to this Fifth Amendment.

1.4       Each reference in the Agreement to “Company” or “Companies” shall mean a reference, individually or collectively, as the case may be, to TIM Celular, INTELIG, TIM Fiber SP and TIM Fiber RJ.

1.5       Each reference in the Agreement to “Party” or “Parties” shall mean a reference, individually or collectively, as the case may be, to TI, TIM Celular, INTELIG, TIM Fiber SP and TIM Fiber RJ.

2.         Amendment to the Agreement.

2.1       Extension of the Term of the Agreement. The Parties hereby agree to extend the Term of the Agreement, which expired on January 2, 2012, by establishing that the Agreement shall continue in full force and effect until [January 2, 2013] (the “Extended Term”).

2.2       Project Price Cap for 2012. The Parties agree to amend sub-section 5.1 of the Agreement setting forth that, during the Extended Term the Projects to be agreed upon between the Parties in connection with the Agreement shall not exceed the total amount of  € [●] (● Euros) (the “Projects’ Price Cap for the Extended Term”).

2.3       Road Map for the Extended Term. Prior to the execution of this Fifth Amendment, the Companies have been provided by TI with a new Road Map which relates to the Extended Term, aiming at allowing the identification and evaluation of the possible Projects that the Companies may elect to pursue during the Extended Term. Such new Road Map for the Extended Term, has been further implemented in consultation between TI  and the Companies and, by the execution of this Fifth Amendment, it is finally agreed between the Parties in the version which is enclosed hereto as Annex I (“Road Map for the Extended Term”). The Road Map for the Extended Term will be used for the purposes set out in Section 3.1.1 of the Agreement.

2.4       For the Extended Term agreed herein, each reference in the Agreement to the terms “Project Price Cap”, “Road Map”, “Term” and “Annex VII”, shall be intended as a reference made to “Project Price Cap for the Extended Term”, “Road Map for the Extended Term”, “Extended Term” and “Annex I”, respectively, as defined in this Fifth Amendment.

2.5       Adherence to the Agreement. By executing this Fifth Amendment, INTELIG, TIM Fiber SP and TIM Fiber RJ adhere to the Agreement as Parties thereto, irrevocably and unconditionally agreeing and undertaking to be directly bound by any and all terms and conditions of the Agreement.

2.6       The Parties acknowledge and agree that, for all that is not expressly provided in this Fifth Amendment to the contrary, the provisions contained in the Agreement shall remain in full force and effect and shall apply.

3.         Governing Law.

This Fifth Amendment shall be governed by the laws of Italy.  The provisions of Section 10 of the Agreement shall apply to this Amendment and are incorporated herein by reference, mutatis mutandis.

 

 

 

________________________________________
TELECOM ITALIA S.P.A.
By:
Title:

 

________________________________________
TIM CELULAR S.A.
By:
Title:

 

_______________________________________
INTELIG TELECOMUNICAÇÕES LTDA
By:
Title:

 

_______________________________________
TIM FIBER SP Ltda
By:
Title:

 

_______________________________________
TIM FIBER RJ S.A.
By:
Title:

 

And, as intervening Party:

________________________________________
TIM PARTICIPAÇÕES S.A.
By:
Title:

 

 

Annex I

ROADMAP FOR THE EXTENDED TERM

 

 

 

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